Tan (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Subclass 500 (Student) visa. The applicant sought to review the decision to refuse their visa application. The central issue before the Tribunal was whether the applicant was a genuine applicant for entry and stay in Australia as a student, as required by clause 500.212 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine if the applicant genuinely intended to stay in Australia temporarily, having regard to their circumstances, immigration history, and any other relevant matters, in accordance with Direction No. 69. This involved assessing factors such as the applicant's circumstances in their home country, their potential circumstances in Australia, the value of the proposed course to their future, and their immigration history. The Tribunal noted that the applicant had been in Australia since 2017 and had undertaken a series of courses, none of which were completed or had been started, with changes in subject areas.

The Tribunal found that the applicant's academic progress, or lack thereof, and their failure to complete or even commence courses, was inconsistent with the behaviour of a genuine student. Furthermore, the Tribunal considered the applicant's immigration history, noting that while there were no prior visa refusals or cancellations, the applicant had been in Australia for an extended period without successfully completing a qualification. This pattern of behaviour led the Tribunal to conclude that the applicant's actions demonstrated an intention to use the student migration program to maintain ongoing residence in Australia, rather than a genuine intention to stay temporarily. Consequently, the Tribunal was not satisfied that the applicant met the criteria under clause 500.212(a) and therefore did not meet the requirements for a genuine applicant for entry and stay as a student.

The Tribunal affirmed the decision not to grant the applicant a Subclass 500 (Student) visa. The applicant did not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.